G.R. No.

187056 September 20, 2010

JARABINI G. DEL ROSARIO, Petitioner,
vs.
ASUNCION G. FERRER, substituted by her heirs, VICENTE, PILAR, ANGELITO, FELIXBERTO, JR.,
all surnamed G. FERRER, and MIGUELA FERRER ALTEZA, Respondents.
DECISION
ABAD, J.:
This case pertains to a gift, otherwise denominated as a donation mortis causa, which in reality is a
donation inter vivos made effective upon its execution by the donors and acceptance thereof by the
donees, and immediately transmitting ownership of the donated property to the latter, thus precluding a
subsequent assignment thereof by one of the donors.
The Facts and the Case
On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a document entitled
"DonationMortis Causa"1 in favor of their two children, Asuncion and Emiliano, and their granddaughter,
Jarabini (daughter of their predeceased son, Zoilo) covering the spouses 126-square meter lot and the
house on it in Pandacan, Manila2 in equal shares. The deed of donation reads:
It is our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the surviving
spouse.
It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales will continue to occupy the portions
now occupied by them.
It is further our will that this DONATION MORTIS CAUSA shall not in any way affect any other distribution
of other properties belonging to any of us donors whether testate or intestate and where ever situated.
It is our further will that any one surviving spouse reserves the right, ownership, possession and
administration of this property herein donated and accepted and this Disposition and Donation shall be
operative and effective upon the death of the DONORS.3
Although denominated as a donation mortis causa, which in law is the equivalent of a will, the deed had
no attestation clause and was witnessed by only two persons. The named donees, however, signified their
acceptance of the donation on the face of the document.
Guadalupe, the donor wife, died in September 1968. A few months later or on December 19, 1968,
Leopoldo, the donor husband, executed a deed of assignment of his rights and interests in subject
property to their daughter Asuncion. Leopoldo died in June 1972.
In 1998 Jarabini filed a "petition for the probate of the August 27, 1968 deed of donation mortis causa"
before the Regional Trial Court (RTC) of Manila in Sp. Proc. 98-90589.4 Asuncion opposed the petition,
invoking his father Leopoldos assignment of his rights and interests in the property to her.
After trial, the RTC rendered a decision dated June 20, 2003,5 finding that the donation was in fact one
made inter vivos, the donors intention being to transfer title over the property to the donees during the
donors lifetime, given its irrevocability. Consequently, said the RTC, Leopoldos subsequent assignment of
his rights and interest in the property was void since he had nothing to assign. The RTC thus directed the
registration of the property in the name of the donees in equal shares.6
On Asuncions appeal to the Court of Appeals (CA), the latter rendered a decision on December 23,
2008,7reversing that of the RTC. The CA held that Jarabini cannot, through her petition for the probate of
the deed of donation mortis causa, collaterally attack Leopoldos deed of assignment in Asuncions favor.
The CA further held that, since no proceeding exists for the allowance of what Jarabini claimed was
actually a donation inter vivos, the RTC erred in deciding the case the way it did. Finally, the CA held that
the donation, being one given mortis causa, did not comply with the requirements of a notarial
will,8 rendering the same void. Following the CAs denial of Jarabinis motion for reconsideration, 9 she filed
the present petition with this Court.
Issue Presented
The key issue in this case is whether or not the spouses Leopoldo and Guadalupes donation to Asuncion,
Emiliano, and Jarabini was a donation mortis causa, as it was denominated, or in fact a donation inter
vivos.
The Courts Ruling
That the document in question in this case was captioned "Donation Mortis Causa" is not controlling. This
Court has held that, if a donation by its terms is inter vivos, this character is not altered by the fact that
the donor styles it mortis causa.10
In Austria-Magat v. Court of Appeals,11 the Court held that "irrevocability" is a quality absolutely
incompatible with the idea of conveyances mortis causa, where "revocability" is precisely the essence of
the act. A donation mortis causa has the following characteristics:
1. It conveys no title or ownership to the transferee before the death of the transferor; or, what
amounts to the same thing, that the transferor should retain the ownership (full or naked) and
control of the property while alive;
 2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a reserved power in the donor to dispose of
the properties conveyed; and
3. That the transfer should be void if the transferor should survive the transferee. 12 (Underscoring
supplied)
The Court thus said in Austria-Magat that the express "irrevocability" of the donation is the "distinctive
standard that identifies the document as a donation inter vivos." Here, the donors plainly said that it is
"our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the surviving
spouse." The intent to make the donation irrevocable becomes even clearer by the proviso that a surviving
donor shall respect the irrevocability of the donation. Consequently, the donation was in reality a donation
inter vivos.
The donors in this case of course reserved the "right, ownership, possession, and administration of the
property" and made the donation operative upon their death. But this Court has consistently held that
such reservation (reddendum) in the context of an irrevocable donation simply means that the donors
parted with their naked title, maintaining only beneficial ownership of the donated property while they
lived.13
Notably, the three donees signed their acceptance of the donation, which acceptance the deed
required.14 This Court has held that an acceptance clause indicates that the donation is inter vivos, since
acceptance is a requirement only for such kind of donations.1awphi1 Donations mortis causa, being in the
form of a will, need not be accepted by the donee during the donors lifetime.15
Finally, as Justice J. B. L. Reyes said in Puig v. Peaflorida,16 in case of doubt, the conveyance should be
deemed a donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership
of the property subject of the deed.
Since the donation in this case was one made inter vivos, it was immediately operative and final. The
reason is that such kind of donation is deemed perfected from the moment the donor learned of the
donees acceptance of the donation. The acceptance makes the donee the absolute owner of the property
donated.17
Given that the donation in this case was irrevocable or one given inter vivos, Leopoldos subsequent
assignment of his rights and interests in the property to Asuncion should be regarded as void for, by then,
he had no more rights to assign. He could not give what he no longer had. Nemo dat quod non habet.18
The trial court cannot be faulted for passing upon, in a petition for probate of what was initially supposed
to be a donation mortis causa, the validity of the document as a donation inter vivos and the nullity of one
of the donors subsequent assignment of his rights and interests in the property. The Court has held before
that the rule on probate is not inflexible and absolute.19 Moreover, in opposing the petition for probate and
in putting the validity of the deed of assignment squarely in issue, Asuncion or those who substituted her
may not now claim that the trial court improperly allowed a collateral attack on such assignment.
WHEREFORE, the Court GRANTS the petition, SETS ASIDE the assailed December 23, 2008 Decision and
March 6, 2009 Resolution of the Court of Appeals in CA-G.R. CV 80549, and REINSTATES in toto the June
20, 2003 Decision of the Regional Trial Court of Manila, Branch 19, in Sp. Proc. 98-90589.
SO ORDERED.

DIGEST:

DEL ROSARIO vs. FERRER

G.R. No. 187056September 20, 2010
Fac ts:
Spouses Leopoldo and Guadalupe Gonzales executed a document entitled "Donation Mortis Causa" in favor
of their two children, Asuncion and Emiliano, and theirgranddaughter, Jarabini del Rosario covering the
spouses 126-square meter lot and thehouse on it in equal shares. Few months after the death of
Guadalupe, Leopoldo, thedonor husband, executed a deed of assignment of his rights and interests in
subject property to heir daughter Asuncion. He died in June 1972. In 1998 Jarabini filed a petition for the
probate of the deed of donation mortis causa. Asuncion opposed the petition, invoking his father
Leopoldos assignment of his rights and interests in the property to her. After trial, the RTC rendered a
decision finding that the donation was infact one made inter vivos. On Asuncions appeal to the CA, the
latter rendered a decisionreversing that of the RTC. It held that Jarabini cannot, through her petition for
the probateof the deed of donation mortis causa, collaterally attack Leopoldos deed of assignmentin
Asuncions favor. Hence, this instant petition.

Issue:
Whether or not the spouses Leop oldo and Guadalupes donation to Asuncion, Emiliano, and Jarabini was a
donation
mortis causa, as it was denominated, or in fact a donation inter vivos.

Ruling:
It was a donation inter vivos. The fact that the document in question was denominated asa donation
mortis causa is not controlling if a donation by its terms is inter vivos. In Austria-
Magat v. Court of Appeals, the Court held that "irrevocability" is a qualityabsolutely incompatible with the
idea of conveyances mortis causa, where "revocability"is precisely the essence of the act. In the present
case, the donors plainly said that it is"our will that this Donation Mortis Causa shall be irrevocable and
shall be respected bythe surviving spouse." The intent to make the donation irrevocable becomes even
clearer by the proviso that a surviving donor shall respect the irrevocability of the donation.Thus, given
that the donation was indeed inter vivos, Leopoldos subsequent assignment of his rights and interests in
the property to Asuncion is void.